South Atlantic Trucking

National Labor Relations Board - Board Decisions

Jan 29, 1999

327 N.L.R.B. 534 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 534
South Atlantic Trucking, Inc. and International
Longshoremen’s Association, Local No. 2062,
AFL–CIO. Case 12–CA–19437
January 29, 1999
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND BRAME
Upon a charge filed by International Longshoremen’s
Association, Local No. 2062, AFL–CIO, the Union, on
April 20, 1998, the Acting General Counsel of the Na-
tional Labor Relations Board issued a complaint on June
30, 1998, against South Atlantic Trucking, Inc., the Re-
spondent, alleging that it has violated Section 8(a)(1) and
(5) of the National Labor Relations Act. Although prop-
erly served copies of the charge and complaint, the Re-
spondent failed to file an answer.1
On September 14, 1998, the Acting General Counsel
filed a Motion for Default Summary Judgment with the
Board. On September 15, 1998, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be
granted. Pursuant to the Respondent’s request, the time
for filing a showing of cause in response to the Acting
General Counsel’s Motion for Default Summary Judg-
ment was extended until October 13, 1998.
On October 13, 1998, the Respondent filed a document
entitled Verified Response and Opposition to Motion for
Default Summary Judgment and Showing of Good
Cause.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Default Summary Judgment
Sections 102.20 and 102.21 of the Board’s Rules and
Regulations provide that the allegations in the complaint
shall be deemed admitted if an answer is not filed within
14 days from service of the complaint, unless good cause
is shown. Section 102.114(g) of the Board’s Rules and
Regulations specifically provides that facsimile transmis-
sions of answers to complaints will not be accepted for
filing. Section 102.111(b) states that documents post-
marked on or after the due date are untimely. In addi-
tion, the complaint affirmatively states that unless an
answer is filed within 14 days of service, all the allega-
tions in the complaint will be considered admitted.
The undisputed allegations in the Motion for Default
Summary Judgment disclose that, by letter of August 10,
1998, the Acting General Counsel notified the Respon-
dent’s attorney that an answer to the complaint had not
been received and that unless an answer were filed by
August 17, 1998, a motion for summary judgment would
be filed. On August 18, 1998, the Respondent submitted
an answer by facsimile transmission. Not until August
31, 1998, did the Respondent file its answer with the
Regional Office in Tampa, Florida, by express and regu-
lar mail.

1 A copy of the complaint was also sent to the Respondent’s counsel
on June 30, 1998, but a mistake was made in his address. The com-
plaint was then remailed to him by regular mail on July 13, 1998.
In the response to the Notice to Show Cause, the Re-
spondent’s counsel contends that he attempted to fax the
answer to the Regional Office during the late afternoon
on August 17, 1998, but was unable to complete the fax
until August 18, 1998, because the Region’s fax machine
was apparently turned off after 5 p.m. In addition, the
Respondent’s counsel states that the hard copies of the
answer were misplaced in his office, and were not found
and mailed until approximately a week later. Finally, the
Respondent’s counsel argues that entry of summary
judgment would be unfair because the Respondent has
not failed to bargain in good faith with the Union.
We find that the Respondent’s answer was not timely
filed. First, as discussed above, Section 102.114(g) of
the Board’s Rules and Regulations provides that the fil-
ing of answers to complaints by facsimile is not allowed.
E. R. Industries, 320 NLRB 935 (1996). Second, even if
filing of answers by facsimile were acceptable under the
Board’s Rules, the Respondent’s facsimile transmission
was not received until August 18, 1998, 1 day after the
due date. Although the Respondent contends that it un-
successfully attempted to fax its answer on August 17,
1998, Section 102.114(f) of the Board’s Rules and Regu-
lations specifically states that “[a] failure to timely file or
serve a document will not be excused on the basis of a
claim that transmission could not be accomplished be-
cause the receiving machine was offline or busy or un-
available for any other reason.” Thus, the Respondent’s
late fax transmission would not have been excused, even
if facsimile filing of answers were allowed under the
Board’s rules. Third, the copies of the answer which
were mailed were also untimely. One was sent by ex-
press mail and was not received until August 31.2 The
other, sent by regular U.S. mail, was postmarked August
29, 1998, and was not received until August 31, 1998.
To be timely under the Board’s Rules, the answer would
have had to have been postmarked on or before August
16, 1998, or received on or before August 17, 1998. See
Section 102.111(b) of the Board’s Rules and Regula-
tions.
We also find that the Respondent has failed to estab-
lish good cause for the failure to file a timely answer.
The Respondent’s bare explanation that the copies were
misplaced and not mailed for a week does not establish
good cause for failing to file a timely answer. Father &
2 It is not possible to read the postmark on the copy of the express
mail envelope attached to the Acting General Counsel’s motion. How-
ever, the Respondent does not argue that the answer sent by express
mail was tendered to the United States Postal Service on or before
August 16, 1998. See the discussion of the Board’s postmark rule,
infra.
327 NLRB No. 105
SOUTH ATLANTIC TRUCKING 535
Sons Lumber, 297 NLRB 437 (1989), enfd. 931 F.2d
1093 (6th Cir. 1991).
The Respondent further argues that its failure to file a
timely answer should be excused because its attorney is
not a regular practitioner with the National Labor Rela-
tions Board and is not familiar with all of the Board’s
rules of procedure. We find no merit in this argument.
The Respondent received clear notice of its obligation to
file a timely answer and its attorney’s unfamiliarity with
the Board’s procedures does not constitute good cause
for late filing. Duro Pleating, 317 NLRB 614 (1995).3
Similarly, we find no merit in the Respondent’s argu-
ment that the Acting General Counsel has not been
prejudiced by the Respondent’s failing to file a timely
answer. It is not necessary to show prejudice to the Act-
ing General Counsel to require the Respondent to comply
with the Board’s Rules.
In sum, the Respondent’s response to the Board’s No-
tice to Show Cause is inadequate because it does not suf-
ficiently explain the Respondent’s failure to file a proper
and timely answer or provide a cogent reason for further
extending the answering period. The Respondent’s at-
tack on the factual allegations of the complaint, which
would have been appropriate in a timely answer, simply
came too late when, as here, it was included for the first
time in the response to the Notice to Show Cause. Day-
work Fire Protection, 299 NLRB 328 (1990). Accord-
ingly, we find that the Respondent has failed to establish
good cause for the failure to file a timely answer.
In the absence of good cause being shown for the Re-
spondent’s failure to file a timely answer, we grant the
Acting General Counsel’s Motion for Default Summary
Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Florida corpo-
ration with an office and place of business in Miami,
Florida, has been engaged in the business of freight
transportation within the State of Florida. During the 12-
month period ending March 31, 1997, the Respondent, in
the course and conduct of its business operations within
the State of Florida, derived gross revenues in excess of
$50,000 for the transportation of freight in interstate
commerce pursuant to arrangements with and as agent
for various common carriers, including Stroh’s Beer, FAI
Trading, and JB Fuller, each of which operates between
and among various States of the United States. By virtue
of these operations, the Respondent functions as an es-

3 “The Office of the Executive Secretary and the Regional Offices
are always available for consultation in the event counsel is unsure of
due dates under current rules. If the Board were to excuse a failure to
ascertain the requirements of applicable rules, then the rules would
become a nullity.” Bartlett Nuclear, 314 NLRB 1 fn. 1 (1994), enfd. 81
F.3d 169 (9th Cir. 1996).
sential link in the transportation of freight in interstate
commerce. We find that the Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
The Union was certified on July 16, 1997, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:

All full-time and regular part-time dispatchers and
truck drivers employed by the Respondent working out
of the Respondent’s facility located at 10887 N.W.
17th Street, Miami, Florida.

At all times since July 16, 1997, the Union has been the
exclusive representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
By letters dated February 12, March 5 and 17, and
April 3, 1998, as well as in telephone conversations, the
Union requested to meet and bargain with the Respon-
dent. Since about February 12, 1998, the Respondent has
failed and refused to meet and bargain with the Union.
We find that this refusal constitutes an unlawful refusal
to bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By the acts and conduct described above, since Febru-
ary 12, 1998, the Respondent has been failing and refus-
ing to bargain collectively and in good faith with the ex-
clusive collective-bargaining representative of its em-
ployees within the meaning of Section 8(a)(5) and (1) of
the Act, and has thereby engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondent begins to
bargain in good faith with the Union. Correctional Medi-
cal Services, 325 NLRB 1061 (1998); Lamar Hotel, 140
NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 536
1964), cert. denied 379 U.S. 817 (1964); Mar-Jac Poul-
try Co., 136 NLRB 785 (1962).4
ORDER
The National Labor Relations Board orders that the
Respondent, South Atlantic Trucking, Inc., Miami, Flor-
ida, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with International Longshore-
men’s Association, Local No. 2062, AFL–CIO as the
exclusive bargaining representative of the employees in
the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:

All full-time and regular part-time dispatchers and
truck drivers employed by the Respondent working out
of the Respondent’s facility located at 10887 N.W.
17th Street, Miami, Florida.

(b) Within 14 days after service by the Region, post at
its facility in Miami, Florida, copies of the attached no-
tice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 12, after

4 Contrary to his colleagues, in the absence of any allegation of
overall bad-faith bargaining, and with the first unfair labor practice by
the Respondent occurring 7 months into the certification year, Member
Brame would extend the certification year by 5 months, running from
the date the Respondent begins to bargain in good faith. See, e.g., his
position in Day & Zimmerman Inc., 325 NLRB 1046, 1049 fn. 15
(1998).
Member Hurtgen finds it unnecessary to pass on Member Brame’s
point. He notes that the unanswered complaint explicitly sought a Mar-
Jac remedy as does the Motion for Summary Judgment. The applica-
tion of the standard Mar-Jac remedy is uncontested here.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since February 12, 1998.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with International
Longshoremen’s Association, Local No. 2062, AFL–CIO
as the exclusive representative of the employees in the
bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing appropriate bargaining unit:

All full-time and regular part-time dispatchers and
truck drivers employed by us working out of our facil-
ity located at 10887 N.W. 17th Street, Miami, Florida.

SOUTH ATLANTIC TRUCKING, INC.